A blog about American History, and the development of a great Nation

James Buchanan in his state of the Union message to Congress of December 3, 1860, attempted to end the secession crisis by proposing three constitutional amendments:

This is the very course which I earnestly recommend in order to obtain an “explanatory amendment” of the Constitution on the subject of slavery. This might originate with Congress or the State legislatures, as may be deemed most advisable to attain the object. The explanatory amendment might be confined to the final settlement of the true construction of the Constitution on three special points:

1. An express recognition of the right of property in slaves in the States where it now exists or may hereafter exist.

2. The duty of protecting this right in all the common Territories throughout their Territorial existence, and until they shall be admitted as States into the Union, with or without slavery, as their constitutions may prescribe.

3. A like recognition of the right of the master to have his slave who has escaped from one State to another restored and “delivered up” to him, and of the validity of the fugitive-slave law enacted for this purpose, together with a declaration that all State laws impairing or defeating this right are violations of the Constitution, and are consequently null and void. It may be objected that this construction of the Constitution has already been settled by the Supreme Court of the United States, and what more ought to be required? The answer is that a very large proportion of the people of the United States still contest the correctness of this decision, and never will cease from agitation and admit its binding force until clearly established by the people of the several States in their sovereign character. Such an explanatory amendment would, it is believed, forever terminate the existing dissensions, and restore peace and harmony among the States.

Looking closely at the amendments, we see why no Compromise in the mold of 1820 or 1850 was possible in 1860.

The first proposed amendment, was passed by the 36th Congress two days before the inauguration of Lincoln and ratified by two of the states. It read as follows:

“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the following article be proposed to the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said Legislatures, shall be valid, to all intents and purposes, as part of the said Constitution, viz: “ARTICLE THIRTEEN, No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Lincoln gave his unenthusiastic endorsement of this amendment in his First Inaugural with the following words: “holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.” This was merely a repeat of his oft-stated position in the campaign that he had no power under the Constitution to interfere with slavery in the states. When it became quickly obvious that this amendment would not bring the seceding states back into the Union, it immediately became a historical curiosity, sometimes referred to as the “ghost amendment”.

The second proposed amendment on slavery in the territories went nowhere. The Republicans had fought the election on preventing the extension of slavery in the territories and they would never retreat an inch on that point.

In regard to the third amendment, Lincoln had indicated that he very reluctantly supported the Fugitive Slave Law since it was a federal law. However, making it part of the Constitution was another matter entirely. Even if Lincoln was willing to swallow this bitter pill, I can’t imagine enough members of Congress from the North, where the Fugitive Slave Law was massively unpopular going along with the amendment.

Thus Buchanan’s Compromise of 1860 was stillborn. However, even if all of these amendments hd been passed, there is not the slightest evidence that states which had seceded were willing to return. North and South had debated with increasingly angry words the issue of slavery for decades ad nauseum. Future debate would have to be, sadly, on the battlefield.

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[…] the desire of the Southern states to withdraw from the Union. I have discussed these proposals in this post. Of course there is not the slightest evidence that if Congress had enacted these proposals that […]